DOJ Refuses Judiciary Committee’s Request for Kagan-Obamacare Documents; Holder Then Testifies He Was Unaware of Request

November 10, 2011 - 8:01 PM
Eric Holder

Attorney General Eric Holder being sworn in before he testifies in the Senate Judiciary Committee on Nov. 8, 2011. (AP Photo/J.Scott Applewhite)

(CNSNews.com) - The U.S. Department of Justice is refusing to comply with a request from the House Judiciary Committee to provide the committee with documents and witness interviews that the committee believes, as Chairman Lamar Smith (R.-Texas) put it in a letter to Attorney General Eric Holder, would allow the panel “to properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was Solicitor General.”

The committee initially made the request in a July 6 letter that Smith sent directly to Attorney General Eric Holder.

The Justice Department rejected the request in a return letter that Assistant Attorney General Ronald Weich sent to Smith on Oct. 27.

Smith then sent his own return letter to Attorney General Holder on Oct. 28 asking that Holder’s Justice Department either comply with the committee’s original request for Kagan-related documents and interviews by Nov. 4 or else assert the legal privilege it was claiming in refusing to comply.

According to the House Judiciary Committee, the Nov. 4 deadline came and went and DOJ did not respond to Smith’s Oct. 28 letter to Holder.

On Tuesday, when Holder testified before the Senate Judiciary Committee, Sen. Mike Lee (R-Utah) questioned Holder on the matter.

“I'm not familiar with that request. I'd have to look at it,” said Holder. “I'm just not familiar with the request that has been made or what materials have been sought in that regard.”

Watch Sen. Lee's exchange with Atty. Gen. Holder in this video:

At issue in the House Judiciary Committee’s request for documents and interviews is whether Kagan needs to recuse herself from judging Supreme Court cases related to the health care law President Obama signed when she was Obama’s solicitor general and whether Kagan was accurate in answering questions posed by members of the Senate Judiciary Committee during her confirmation hearings.

A federal law, 28 USC 455, states certain circumstances when a Supreme Court justice must recuse from a case. These include “any proceeding in which his impartiality might reasonably be questioned” and anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.” In the questionnaire that Kagan filled out for the Senate Judiciary Committee, Kagan affirmed that she would abide by the “letter and spirit” of this law.

On June 24, 49 House Republicans, led by Rep. John Fleming of Louisiana, sent a letter to Judiciary Chairman Smith and Ranking Member John Conyers (D.-Mich.) about the Kagan matter. “We respectfully call upon the House Judiciary Committee to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act (PPACA) during her tenure as Solicitor General,” the congressmen wrote.

“Contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee, recently released Department of Justice documents indicate that Justice Kagan actively participated with her Obama Administration colleagues in formulating a defense of PPACA,” the congressmen said in the letter.

Twelve days after receiving this letter from 49 congressmen, Chairman Smith followed up on it by sending a letter of his own directly to Attorney General Holder.

“In recent weeks, questions have been raised about whether Justice Kagan’s prior work on what became the Patient Protection and Affordable Care Act (PPACA) while serving as Solicitor General should disqualify her from hearing challenges to its constitutionality,” Smith wrote Holder in this July 6 letter.

“During her Senate confirmation, then-Solicitor General Kagan answered ‘no’ when questioned about whether she had ever been ‘asked about [her] opinion’ or ‘offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation … or … potential litigation resulting from such legislation,’” Smith wrote Holder.

“Yet, documents released by the Department in response to recent Freedom of Information Act requests raise questions about that unequivocal denial,” Smith said to Holder.

The Freedom of Information Act requests Smith references here were filed by CNSNews.com and Judicial Watch. CNSNews.com’s FOIA, initially filed on May 25, 2010, sought records of any communications to or from Kagan or any meetings she had attended personally or electronically in which any of three things were discussed: 1) the administration’s health-care reform plan, 2) any legal challenge to the health-care bill President Obama signed, and 3) whether Kagan ought to recuse herself from involvement in any case as solicitor general because it might later come before her were she confirmed to a federal court.

When the Justice Department did not respond to CNSNews.com’s FOIA request for six months, the Media Research Center, CNSNews.com’s parent organization, sued the department on Nov. 23, 2010 in the U.S. District Court for the District of Columbia The purpose of the suit was to compel DOJ to comply with the FOIA request. Judicial Watch, which had filed a FOIA seeking similar documents, also brought suit against DOJ. The MRC and the Judicial Watch suits were joined by the court.

On March 15, 2011, before the court had ruled on the lawsuits, DOJ released 66 pages of emails to CNSNews.com. These included a chain of emails from Jan. 8, 2010 in which Kagan assigned Neal Katyal, her top deputy in the solicitor general’s office, to handle the expected lawsuits against President Obama’s health-care bill which had passed the Senate two weeks before. Katyal later signed the briefs and argued some of the cases challenging Obamacare in federal courts.

“Hi Neal,” Brian Hauck, the senior counsel to Associate Attorney General Tom Perrelli wrote in one of these emails to Kaytal. “Tom wants to put together a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending, and hoped the OSG [Office of Solicitor General] could participate. Could you figure out the right person or people for that?”

Katyal emailed back to Hauck: “Absolutely right on. Let’s crush them. I’ll speak to Elena and designate someone.”

He then forward Hauck’s email to Kagan. “I am happy to do this if you are ok with it,” Katyal told Kagan.

“You should do it,” Kagan responded.

Two hours after this, Katyal emailed back to Hauck: “Brian, Elena would definitely like OSG to be involved in this set of issues. I will handle this myself, along with an Assistant from my office, [name redacted], and will bring Elena in as needed.”

In a later set of emails, sent on the evening of Sunday, March 21, 2010—the day the Patient Protection and Affordable Care Act passed the House—Katyal forwarded Kagan an email from Associate Attorney General Perrelli about a “Health care litigation meeting” that was going to be held at the White House the next day to plan for the expected lawsuits against the act.

“I think you should go to this, no?” Katyal says to Kagan in a message accompanying the forwarded email. “I will regardless, but I feel that this is litigation of singular importance.”

One minute after Katyal sent her that email, Kagan emailed back: “What’s your phone number?”

Katyal then emailed her his number—and the email chain ends.

This Wednesday, DOJ released another set of emails to the Media Research Center and Judicial Watch in response to their FOIA requests. This set included an exchange between Kagan and famed Supreme Court litigator Laurence Tribe, who was then working in the Justice Department. In these emails, Kagan seems to evoke enthusiasm for the imminent passage of PPACA.

Tribe first sent Kagan an email with the subject line “fingers and toes crossed today”—an apparent reference to the imminent vote on PPACA. The body of the email was about rescheduling a postponed dinner meeting.

Kagan responded: “I hear they have the votes, Larry!! Simply amazing.”

In his followup email, Tribe says: “So health care is basically done! Remarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!” (The Stupak group was a collection of Democratic congressmen, led by Rep. Bart Stupak of Michigan, who had said they would not vote for PPACA unless it specifically prohibited federal funding for abortion, but then changed their minds when President Obama agreed to sign an executive order that Obama said would prevent funding of abortion through PPACA.)

Tribe told CNSNews.com that these brief references in this March 21, 2010 email exchange with Kagan represent the totality of his communications with Kagan on the issue. He also said he knew of nothing that would require Kagan to recuse herself under the terms of 28 USC 455 from cases involving PPACA. (See related story here.)

Also, in the set of emails that DOJ released Wednesday was an email that Katyal sent Kagan on Oct. 13, 2009, in which Katyal says “we just got snowe on health care”—an apparent reference to Sen. Olympia Snowe (R-Me.). That day, Snowe was the only Republican to vote for PPACA when it was approved by the Senate Finance Committee on which she served.

During Kagan’s confirmation process, the Republicans on the Senate Judiciary Committee sent her a letter asking her a series of questions probing her possible involvement in health care legislation or litigation during her time as solicitor general. The senators’ letter included the questions referenced by Chairman Smith in his July 6 letter to Attorney General Holder. The senators asked Kagan: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

The sentors also asked her: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

Kagan’s written response to both questions was unambigious. “No,” she said.

In his July 6 letter to Holder requesting Kagan-related documents and witness interviews, Judiciary Chairman Smith said: “Based on a review of these released documents [the emails released under FOIA to CNSNews.com on March 15], and in order to properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was Solicitor General, I request that the Department produce the following materials from the period between March 20, 2009 and August 7, 2010: 1. All documents referring to any meetings or conversations (personal or electronic) about potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned or copied. 2. All documents referencing potential or actual health care legislation or litigation in which Solictor General Kagan was involved, mentioned or copied. 3. All documents referencing excluding Ms. Kagan from any matters involving health care legislation or litigation while she was Solicitor General. 4. All documents referencing possible recusal by Solicitor General Kagan from any matters relating to health care legislation or litigation if she were to be confirmed as a Supreme Court Justice.”

The Judiciary Committee also asked for interviews with Katyal and Justice Department Spokesperson Tracy Schmaler, both of whom were parties to some of the Kagan emails that DOJ released to the MRC and Judicial Watch.

In this July 6 letter to Holder, Judiciary Chairman Smith asked that DOJ respond to the request by July 29.

Almost four months passed. Then on Oct. 27, Assistant Attorney General Weich sent Smith the letter refusing the committee’s request.

Citing the court case that the Media Research Center and Judicial Watch had brought against the Justice Department, DOJ said it would be happy to send the House Judiciary Committee the documents it had already released to CNSNews.com. “[W]e would be pleased to provide them to you upon request,” wrote Weich. “We are not aware of any information in the documents that ‘raise(s) questions’ about then Solicitor General Kagan’s statements in the confirmation process."

Weich then informed Chairman Smith that the Justice Department considered the Judiciary Committee’s request for documents to be “unseemly.”

“We have grave concerns about the prospect of a congressional investigation into the pre-confirmation activities of a sitting Supreme Court Justice,” wrote Weich. “The Senate confirmation process is a rigorous, in-depth inquiry into the background and activities of nominees, particularly for the Supreme Court.

“As you note,” Weich continued, “then-Solicitor General Kagan answered questions about the topics described in your letter during the course of her confirmation. We are unaware of any precedent for Congress to conduct a post-confirmation investigation regarding the pre-confirmation activities of a sitting Justice, and we regard such a course of action as an unseemly encroachment on the judicial branch of government.”

Weich went on to inform Smith, “we respectfully decline to produce the documents and access to individuals requested in your letter.”

In fact, the jurisdictional authority of the House Judiciary Committee includes “the judiciary and judicial proceedings, civil and criminal” as well as “Federal courts and judges.”

The day after Weich sent his refusal letter to Chairman Smith, Smith responded with another letter directly to Attorney General Holder.

“After waiting nearly four months for a response, the Department, in a one page response, denied both my request for documents and authorization to interview the  two individuals,” Smith said to Holder in this Oct. 28 letter. “In so doing, the Department did not assert any legal privilege to support the decision, but instead concluded it would be ‘unseemly’ to comply with my request.”

Stating that this was “not an acceptable basis” for denying the request, Smith asked the committee either to comply by Friday, Nov. 4 or assert the legal privilege it was claiming as the basis for its refusal to comply.

The Nov. 4 deadline passed and the DOJ did not respond, according to the Judiciary Committee.

On Nov. 8, Holder testified in the Senate Judiciary Committee. The hearing began with Senate Judiciary Chairman Patrick Leahy (D-Vt.) administering an oath to Holder.

“Attorney General Holder, would you please stand, raise your right hand,” said Leahy. “Do you swear that the testimony you're about to give before this committee be the truth, the whole truth and nothing but the truth so help you God?”

“I do,” said Holder.

When Sen. Mike Lee of Utah got his turn to question Holder, he brought up the House Judiciary Committee’s request for the Kagan-related documents and interviews.

“I understand that the House Judiciary Committee has issued a request, I believe it was this past Friday, for documents and witness interviews related to Justice Kagan’s involvement in the health care legislation and related litigation during her service as solicitor general,” said Lee. “Will the Department of Justice comply with that request?”

Despite the fact that the request had been made directly  to Holder twice, in writing, by the chairman of the House Judiciary Committee, and despite the fact that Holder’s Justice Department had sent the House Judiciary chairman a letter formally rejecting the request, Holder indicated he was not aware of it.

“I'm not familiar with that request. I'd have to look at it,” said Holder. “I'm just not familiar with the request that has been made or what materials have been sought in that regard.”

Lee followed up. “Okay,” said the senator. “I believe the intent of the request is to get at any documents or any other indication that Justice Kagan, while serving as solicitor general, may have participated in discussions related to actual or contemplated anticipated litigation involving the constitutionality of the Affordable Care Act.”

Holder than said Kagan was “physically” moved out of the room whenever health-care-reform legislation came up in a conversation at the Justice Department.

“Well, I can tell you that certainly one of the things that we did while she was solicitor general was to physically--physically, literally--move her out of the room whenever a conversation came up about the health-care reform legislation,” said Holder. “I can remember specific instances in my conference room where, when we were going to discuss that topic, we asked Elena, Justice Kagan, to leave and she did.”

Lee followed up again. “So, that being the case, there shouldn't be a problem responding, complying with this request,” he said to Holder.

Holder again testified that he was not familiar with the request.

“Again, I don't know what the nature of the request is,” said Holder. “I can certainly look at it.”

“Okay. Yeah, there were letters,” said Lee. “One was sent on Friday from the chairman of the House Judiciary Committee."

“Okay,” said Holder.

The day after Holder’s testimony, the House Judiciary Committee confirmed that it still had not received a response to Chairman Smith’s Oct. 28 letter to Holder.

On Wednesday, CNSNews.com emailed to Justice Department Spokesman Tracy Schmaler PDF copies of Smith’s July 6 and Oct. 28 letter’s to Attorney General Holder as well as a copy of Assistant Attorney General Weich’s Oct. 27 letter to Smith. CNSNews.com also emailed Schmaler a transcript of the portion of Holder’s Tuesday testimony in the Senate Judiciary Committee where he was questioned by Sen. Lee about the House Judiciary Committee’s request for Kagan-related documents and interviews.

CNSNews.com put three questions to Schmaler for the Department of Justice. These questions were as follows:

“1. Who in the Justice Department made the decision not to comply with the House Judiciary Committee’s request--initially made in Chairman Lamar Smith's July 6 letter--asking for documents and witness interviews so the committee could properly understand any involvement by former Solicitor General Elena Kagan in matters relating to health care legislation or litigation?”

“2. Did Assistant Attorney General Ronald Weich, or anyone else involved in preparing Assistant Attorney General Weich’s Oct. 27 letter to House Judiciary Chairman Lamar Smith, at any time discuss with Attorney General Eric Holder the Judiciary Committee’s July 6 request or the response that Assistant Attorney General Weich made to the committee on behalf of the department declining to comply with the committee’s request?”

“3. Was Attorney General Holder in fact never informed by anybody in the Justice Department about the House Judiciary Committee’s request made in the two letters sent to him by Chairman Smith--on July 6 and Oct. 28—asking for documents and witness interviews so the committee could properly understand any involvement by former Solicitor General Elena Kagan in matters relating to health care legislation or litigation?”

By late Thursday afternoon, Schmaler had not responded to CNSNews.com's questions. CNSNews.com sent her the questions again. By Thursday night, she still had not responded.

Justice Department Spokesperson Schmaler, as noted, is one of the two people Chairman Smith asked DOJ to let the Judiciary Committee interview.